It was long awaited and it carried with it great expectations. The first
EU Cyber Security Strategy was published on 7 February and the report
underlines right from the start the increasingly fundamental role that a
robust, free and secure internet plays in our lives and our continued
prosperity.

Thursday, 24 January 2013

Since the Legal Services Board published our report on the Cab Rank Rule on 22 January we've had many comments coming in on the discussion boards. They are not all negative, though many are.

I wanted to give some of the flavour of what is coming our way. We expected it of course. The first article to appear was in the Law Society Gazette (the solicitors' journal not barristers') which has garnered many comments. I have tried replying to a few. Catherine Baksi gave a good summary of the papers. Here are some of the comments:

This is a sensible step forward. Most other countries do not have this silly rule. Indeed, some other countries view this rule as entirely unethical. This will level the playing field and allow people to receive better representation, and allow lawyers to openly restrict themselves to cases they actually take.

There is no point in having a rule that is not enforced, unenforceable and not generally supported merely because a minority does.

And what is to happen the first time a Defendant accused of some really nasty offence - Huntley, or the man who killed Millie Dowler - cannot find representation because every lawyer approached reckons it will cost more work than it is worth?

The defendants accused of really nasty offences that are media worthy will not have a problem getting representation because that is exactly the kind of high-level exposure that criminal barristers want. Such exposure is not only fun to have, but also increases business.

I have never had a barrister outright refuse a case, and as a matter of principle I would only ever send instructions/brief to a barrister who I would expect to take the case unless given very specific instructions by my client as to who he/she/it wishes to use.

I have, however, had an experience where the fee demanded by my client's chosen barrister was deliberately priced so high that my client couldn't possibly afford it. The clerk was absolutely open about it - saying that this eminent barrister regularly advised the other party to the dispute and, while on this occasion there was as yet no conflict, he would need a substantial fee to justify subsequently having to turn away the other work that he expected to be offered.

In other words, not quite "No thanks, don't fancy your client.", but as near as dammit.

Yes, this is what we expect from the half-educated half-wits who become professors nowadays. "The rule is imperfect, so it must obviously be abolished."

Might as well abandon the whole of criminal law, then, since that doesn't punish let alone convict a significant proportion of perpetrators.

What might happen if the rule was abolished altogether has been recently illustrated in India, where the Bar has rushed to announce that it will have nothing to do with defending those beyond-the-pale men charged with the rape and murder of the student on the bus. After all, why imperil your career or endanger your family for fear of reprisals against your representation of such obviously unworthy objects of legal attention?

So, there it is, then. More jobs for the boys: a consultation that means that there will be more time and money spent.

So let's save both: listen very carefully.

THE CAB RANK RULE DOES NOT WORK. IT HAS NOT WORKED FOR AT LEAST 25 YEARS. SCRAP IT. AND DON'T SPEND A FORTUNE DECIDING WHETHER TO REPLACE IT AND IF SO WITH WHAT. IT'S A FREE MARKET, IT OPERATES LIKE A FREE MARKET AND HAS DONE SO WITH SUCCESS FOR A LONG TIME. REMOVE THE FAKE RESPECTABILITY AND LEAVE IT ALONE.

And next time you want a proper opinion, ask a lawyer. Hell, ask me: I'll do it in a fraction of the time, for a fraction of the cost.

One of the best write ups came from Dan Bindman at Legal Futures. No comments there but it had been tweeted extensively.We've thrown the stone in the pond, let's see where the ripples end up. The Bar has begun but as the Law Gazette said,

Chair of the Bar Standards Board Baroness Ruth Deech said: ‘We will analyse the report with interest but we are clear that removing this fundamental principle would send out a dangerous message.

‘The cab rank rule protects barristers who take unpopular causes and reassures the public that they are entitled to representation even if their case is controversial in nature.

‘The rule has served the public and the standing of British law well for centuries we have no evidence that it does any harm.’

With this dubious intro I change the topic around to the Bar's cab rank rule which essentially says barristers shouldn't refuse clients. I'm not sure, however, if barristers are cheap, cheerful and extremely plentiful. In order to find out more, the Legal Services Board commissioned me and Morten Hviid of UEA to research the cab rank rule.

Our report is published today and you can download it here. The LSB is inviting comments on whether the rule should be retained, removed, or altered. Here is the LSB summary:

Cab Rank Rule Research Summary

Why this? Why now?

In May 2012 the LSB commissioned Prof. John Flood (University of Westminster) and Prof. Morton Hvvid (University of East Anglia) to carry out a literature review analysing the impact on the market of paragraphs 601-610 of the of the Bar Standards Board’s (BSB) code, otherwise known as the ‘cab rank rule’. The LSB published The Cab Rank Rule: Its Meaning and Purpose in the New Legal Services Market on 22 January 2013.

Since at least the 17th Century it has been an important principle for the Bar that everyone who might benefit from having representation should have access to a suitable barrister. More recently this desire to ensure access to justice, of which representation is arguably a crucial element, was enshrined with the Legal Services Act 2007 (“the Act”) as one of the eight regulatory objectives.

However, while the formal cab rank rule is clearly aimed at ensuring access to justice, it might equally be argued that its requirement for each individual barrister to offer services to all, could act as a barrier to barristers looking to specialise. As far back as 1776, when Adam Smith’s The Wealth of Nations was published, economists have been aware of the wider economic benefits specialisation can deliver for an efficient, competitive market. Thus the cab rank rule couldpotentially both undermine its own aim to improve access to justice (by reducing opportunities for specialisation and so the provision of niche services) and also damage other regulatory objectives, such as to promote competition.

While paragraphs 601-602 of the BSB’s code sets out the core principles of the cab rank rule, paragraphs 603-607 outline a series of exemptions and exceptions to the rule, perhaps recognising that its absolute status is less relevant in 2013. The fact that so much of legal aid work, where access to justice may be thought paramount, is exempt serves only to highlight this tension between principle and rule.

In practice therefore the impact of the rule on the regulatory objectives is complex, and the LSB believed, worthy of closer analysis.

A further reason for undertaking this study now is the desire of the BSB, in the context of the Act, to move from a regulatory framework based on highly elaborated rules to one more closely aligned with the outcomes set out within the Act. This itself raises a number of questions for the cab rank rule. Could it be reframed as a principle? What impact does the rule currently have? What would happen in the absence of the rule altogether? This research paper considers these issues and more through an analysis of the available literature, supplemented by interviews with the profession.

The findings

The report found no evidence of the rule being actively monitored or enforced by the regulator. In terms of impact, it could not be shown that it ensured representation. There was little evidence that it was understood within the market: indeed specialisation by some Chambers arguably demonstrated that the rule was regularly breached.

That is not to say that the principle itself of representation for all was not followed in spirit by the profession, but just that is it not clear whether the desire to offer representation is driven as much or more by the professional principle or by economic calculations. It certainly would seem that, in England and Wales at least, clients who at one time may have been considered unattractive e.g. terrorists are now, through the wider publicity benefits they might offer, perhaps somewhat more attractive than many other types of client.

In the end the report seeks to probe the future benefits of a rule, which while having significant professional benefits, is limited in its practical application? The range of exemptions and exclusions, including those barristers offering direct public access, already limit the practical scope of the rule. Whether measured by complaints or disciplinary findings, the authors argue that there is no evidence that the rule is applied beyond a general desired professional principle.

The report concludes that, as the profession moves from a rulebook to a code of principles or outcomes, it would seem appropriate to consider whether the cab rank rule could similarly be moved to a principles basis. Here the report noted that the New York State Bar Client Rights number 10 provides one possible model:

“You may not be refused representation on the basis of race, creed, color, age, religion, sex, sexual orientation, national origin or disability.”

If modernised to reflect our national perspective on protected characteristics and supplemented with the additional protections that “you may not refuse to provide representation based on the popularity or otherwise of the client, case/crime or defence” the report provides one basis for the retention and reform of the cab rank rule in line with the strong ethical foundations that underpin the Bar.

The LSB will be interested in hearing the views of stakeholders, both professional and consumer, on the report’s analysis and its suggestions for the way ahead.

Leichter, as creator of The Law School Tuition Bubble, is as you would imagine more dystopian in his view of legal education. (I agree with much of what he says in Bubble.) The gist of his American Lawyer piece is that the versatility of the JD degree is a misnomer for law graduates not being able to find jobs. Because the ABA convinced states to accept its monopoly over accrediting law schools the purpose of law school was to train lawyers for law jobs. Moving into other careers, ancillary or otherwise, was accidental.

It has been recognized from Max Weber onwards that law has been one of the most, if not the most, transferable and portable of educations and skills around. More so than engineering (but compare China) or administration (compare France). Political scientists have demonstrated the clear predominance of lawyers in legislatures at both state and federal levels. And 25 of the 43 presidents of the United States were lawyers.

For Leichter the luxury of latitude is now too expensive and so law degrees must be of single purpose. I think he is doing law and himself an injustice.

While legal education is in crisis, there are bright areas where teachers and scholars are trying to reinvent law and legal education in ways that don't detract from its purpose (read Karl Llewellyn on "law jobs"), but augment and expand its remit.

ReInvent Law is one of these explorations. It takes the idea of collaboration seriously and that lawyers can learn from other disciplines and practice. ReInvent Law also wants to eradicate the essential conservatism of law by introducing ideas of entrepreneurialism. The founders, Renee Knake and Dan Katz, have of course spent time in the UK and are acquainted with the new entrepreneurialism of legal services here. The expansion of Alternative Business Structures and online provision of legal services, to mention two, inform their course on Entrepreneurial Lawyering.

It was the success of LawTechCamp London 2012 that underpinned ReInvent Law. (And by the way three students received job offers at that LawTechCamp, all in diverse legal ventures.)

ReInvent Law is the indicator of the way things are going or ought to go in legal education, especially if it is to drag itself out of the morass it's in. It builds on the success of Miami's Law Without Walls and Temple's LawMeets.

There are high barriers to overcome, the conservatism of law and lawyers, the move to interdisciplinarity, and the readiness of the market to accept these new ideas. In some ways programs like ReInvent Law are pushing at opening doors. We know that law firms aren't looking for just highly-trained technical lawyers: they want people who can think about business, clients as well as law. These programs drive to the core of this thinking. Neither LawMeets nor ReInvent Law would have received the grants they attracted if this weren't so.

Yet they are still on the edge of law and we need to drag them to the centre.